(dissenting) — I see nothing in either the state or federal constitutions which requires that an accused be permitted to work a fraud upon the court and jury. The trial court by its ruling in this case made clear that it would not countenance such a result. The Court of Appeals agreed. I also agree and would affirm the defendant's conviction of first degree murder.
The Fifth Amendment guarantees that "[n]o person . . . shall be compelled in any criminal case to be a witness against himself".3 To protect this right, the United States Supreme Court held in Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602, 10 A.L.R.3d 974 (1966) that the prosecution was barred from proving its case by using statements made by a defendant while in custody prior to having counsel or effectively waiving the right to counsel. The procedural safeguards established by the Miranda Court were not, however, intended to "create a constitutional straitjacket", Miranda at 467, nor are the Miranda warnings themselves rights protected by the constitution. New York v. Quarles, _U.S._, 81 L. Ed. 2d 550, 556, 104 S. Ct. 2626, 2631 (1984) (citing Michigan v. *579Tucker, 417 U.S. 433, 444, 41 L. Ed. 2d 182, 94 S. Ct. 2357, 2364 (1974)).
Soon after Miranda, the United States Supreme Court further made it clear that
[i]t does not follow from Miranda that evidence inadmissible against an accused in the prosecution's case in chief is barred for all purposes, provided of course that the trustworthiness of the evidence satisfies legal standards.
Harris v. New York, 401 U.S. 222, 224, 28 L. Ed. 2d 1, 91 S. Ct. 643 (1971). The court in Harris, relying on Walder v. United States, 347 U.S. 62, 98 L. Ed. 503, 74 S. Ct. 354 (1954), thereupon held that a statement made by a defendant that is constitutionally inadmissible as a part of the State's case in chief could nevertheless be used for impeachment purposes because
The shield provided by Miranda cannot be perverted into a license to use perjury by way of a defense, . . .
Harris, at 226.
In State v. Hayes, 73 Wn.2d 568, 439 P.2d 978 (1968), also relying on Walder, this court allowed the use of evidence suppressed by a pretrial order where the defendant opened the door to its admissibility by seeking to gain extraordinary advantage from the fact of suppression of that evidence. In Hayes, the defendant on direct examination of a witness other than himself attempted to establish his intoxication defense. The trial court's pretrial order had suppressed the Breathalyzer test results which showed that his blood alcohol was below the intoxication level at the time of the crime for which he was being tried. This court allowed the State to use the previously suppressed evidence because the defendant had himself opened up the subject of the degree of his intoxication, the court stating:
It is one thing to say the state cannot make affirmative use of evidence which has been suppressed by pretrial order. It is quite another to say that appellant can turn the pretrial order into a shield against contradiction.
Hayes, at 571.
*580I see no valid distinction to be made between the application of the principles of Walder, Harris, Hayes and their progeny4 to those cases, and their application to the case before us. The alibi testimony by the defendant's girl friend was given only after she knew the defendant's statement to his parole officer (that he was present at the murder scene) had been ruled inadmissible for use in the State's case in chief, and after she also knew that the defendant would not take the stand and be subject to impeachment by the use of his statement.
The defendant's statements which are here in question were made after the defendant was fully informed by the police of his rights and which he declined to waive. They were made to his parole officer with whom he had requested to speak. They were made freely, voluntarily, and apparently without the belief that they would be kept in confidence. The parole officer had previously explained to the defendant that what he told her would not be kept confidential — and it was only after she again told him on this occasion that she could not promise confidentiality that the defendant then refused to give more specific details of the murder. Under these circumstances, the trustworthiness of the statements satisfies legal standards against which admissibility may be measured.
It is to be kept in mind here that the alibi witness who testified at trial that the defendant was home with her at the time of the murder was far from a disinterested and unbiased witness. This witness, who married the defendant in jail after his conviction (and which they somehow managed over the State's objection and without the court's permission), was actively involved in the preparation of the defense case. The use of this witness, now the defendant's wife, to establish his alibi defense was but a thinly veiled *581attempt to do indirectly what the defendant himself could not do directly — establish an alibi and at the same time keep his own freely, voluntarily and openly given statement from the jury.5 To my view, the trial court acted appropriately when it refused to permit this and ruled that under these circumstances the defendant's prior statement that he was present at the scene when the murder was committed would be admissible for the narrow purpose of contradicting the alibi.
I would not countenance allowing alibi testimony of this nature to go uncontradicted by the defendant's own words. In my judgment, to do this permits the prohibitions of Miranda to be used to impair the integrity of the truth-finding process without correspondingly furthering the protection of the defendant's right against self-incrimination. Nothing in either the state or federal constitutions or in any of the United States Supreme Court's decisions mandates such a result. Nor would I. A defendant should not be permitted to use the constitution to perpetrate a fraud on the trial court and the jury. I would affirm the conviction.
Dolliver and Dimmick, JJ., concur with Andersen, J.
Fifth amendment to the United States Constitution.
United. States v. Havens, 446 U.S. 620, 64 L. Ed. 2d 559, 100 S. Ct. 1912 (1980); Oregon v. Hass, 420 U.S. 714, 43 L. Ed. 2d 570, 95 S. Ct. 1215 (1975); Michigan v. Tucker, 417 U.S. 433, 41 L. Ed. 2d 182, 94 S. Ct. 2357 (1974). See also United States v. Calandra, 414 U.S. 338, 38 L. Ed. 2d 561, 94 S. Ct. 613 (1974); State v. Holland, 98 Wn.2d 507, 519-20, 656 P.2d 1056 (1983).
See, e.g., St. Regis Paper Co. v. United States, 368 U.S. 208, 217, 7 L. Ed. 2d 240, 82 S. Ct. 289 (1961); United States v. Brandom, 479 F.2d 830, 835 (8th Cir. 1973); FTC v. Dilger, 276 F.2d 739, 743 (7th Cir. 1960); McCubbin v. State, 675 P.2d 461, 465 (Okla. Crim. App. 1984).